Mediation (AN ALTERNATIVE DISPUTE REDRESSAL FORUM IN JUDICIAL SYSTEMYOGESH KUMAR SAXENA(as Representative of Middle East Asia) at World Parliament Experiment in Bonn( Germany) on 25th feb. 2008)

Mediation (AN ALTERNATIVE DISPUTE REDRESSAL FORUM IN JUDICIAL SYSTEM) (A lecture given on the subject on Mediation Process and meditation (as administered in India) by undersigned Advocate, YOGESH KUMAR SAXENA(as Representative of Middle East Asia) at World Parliament Experiment in Bonn( Germany) on 25th feb. 2008) What is mediation? This question may agitate your mind. Negotiation seldom works and litigation begins between parties. Mediation facilitated negations between two people. It is an integrated and distributed bargaining, when no individual meeting of mind are feasible. It is confidential and a non verbal communication of desire. It uses the language of silences. A desire for conveying the pre mediation option begins, as the functioning of the Courts are adversial in attitudes. The hostilities between people are more propounded. There is no method to control the behavior of litigants, except by observation of some indifferent attitudes of attachment with detachments. Society may play a prominent part in mediation. It may compel the parties to resolve the dispute, in case minor scuffle begins on the issues of wrong driving of vehicle by a cyclist. The people support the version of the weaker side as they themselves belong to downtrodden class and they may have internal prejudice against the vehicle owner, but a mediator may have nothing against car owner or pedestrians, as he as a mediator has given up this carnal desire of internal prejudice by the passage of time of experiences. Mediator has to expose the unclear underlying core dispute of hostility. He has to break the Impasse. He has to gather information regarding reluctance. Than a trust is build and support start. He should control the command of process and find out an opportunity to suggest. In matrimonial disputes, one should study the problem underlying between the husband and wife. There is unrealistic situation of human behavior between man and woman. Man by nature is dominating to pacify his biological lust, while woman try to get a command over psychological sphere of trust, which she may seldom get out of the schedule of working partners. This is the betrayal of relationship. Those women, who are exertive in nature and are more adamant, may loose the battle. Similarly if the male partner is more authoritative, the family relationship may come to an end. Thus, we may identify the problem from this angle by reposing the confidence in both the sides. Sometimes, the business disputes are underlying beneath the curtains and a mediator has to tear out the veil and to expose the reality of the truth. They are adamant to resolve as they are unrealistic in their approach. A mediator has to listen to stake their claims. The first step is silence and to listen them patiently. The casting of the issues, designing a solution, negotiating with options, motivation, confidence, optimistic, artistic venture, inculcate mind, unrealistic expectations, proper analysis and flexibility by derivations to repose a faith in mediation instead of adjudication with uncertainty of the outcome to the parties may solve the problem of impasse between the litigants. One has to find out the problem first. People are in such a haste to resolve a dispute as they seldom identify problems and start fighting on non-issues based conflict. Sometimes, there is solution in the problem. One may have an art to identify it and to place it in correct prospective. Mediator has to build a golden beach with pure water to take a dip inside there and then they may live in one cottage. There is no scarcity of the product. One has to arrive to an agreement. Mediator has to exercise his wisdom with full creditability for his position. He should avoid fault finding tendency. After all, he is negotiating between two individuals. Men seldom control their periodical outburst. Let the parties may cry and blame each other. Mediator is a motivator to pacify them. Thus, the exchange of information gathered through negotiation must be hidden. One may provide an obstruction in the process of mediation and as such the dispute may resolve quickly in order to avoid obstruction in the process. Sometimes, break in the process is required by shuttle mediation. Confidence is the beginning of the trust otherwise the agreement of the minds of the parties may not arrive. The agreement may be efficient and capable of being enforced. Mediator may tender his apology, if required after indulging himself in the problem of the parties, without looking to the individuals. The body language and his optimistic attitude towards the eradication of the problem and personal warming of the parties by the mediator, like a mentor, may win their consent to an agreement. Even if he does not share with their views but problem must be appreciated. Second thought may be invited from the parties. The obligations to pay and repay must be encouraged on ethnic compulsion. Encouragement like recital of holy sermons of Gita by Lord Krishna, embracing rejection may be the guiding factor during mediation. It is not critics, who bound, credit is given to the man, who is in the arena to meet efforts. Mediation is the type of work, very challenging with responsibility for deliverance from a state of disharmony to the state of harmony. Mediation is rewarding in the skill of interactive workshop. It is a dispute resolution process. There is the difference between mediation and conciliation. It has got the different pursuit then arbitration. In the process of conciliation, conciliator is viewed as authority and his discussion is limited to the tradition limited right. In arbitration there is no bargaining and he controls the out come of the dispute resolution process. There are the rules of evidence and burden of proof and enforcement of award. Thus mediation is better than conciliation and arbitration. The process of “Mediation” has got more independence and less interferences from other outside agencies having the transparency and self restriction upon the traditional Anglo- Saxon- Jurisprudence of strict observation of locus- standee and rigmarole of technicalities for adjudication of the dispute and since the decision arrived is of the parties within the periphery of permissible limit under due process of law, one feel better satisfaction towards performance of its functioning. After all litigants have their own choice in the matter of their selection of a “Mediator”. It is an identification of mind as an independent personality as the tenability to enter into harmony and oneness is resulting in mental and physical suffering. The sense of obstruction and disappointment may lead towards disintegration of society. Pessimistic approach, the energy gets deplete, object conscienceless leading to a state of starvation and one’s Consciousness. Gita says ‘he whose mind is not shaken by diversity, who does not hanker of the pleasure, and is free from attachment, that meets with everything good or bad, neither rejoices nor hates his wisdom is fixed’. The crucial conditions are still having their predominating conditions in the legal profession. This is on account of their non- adaptability in the profession by such fundamentalist elements, which provide the top priorities to the conservative approach instead of liberal out look towards them. . The unfortunate, who have the better experiences towards the problems of life, are put to the disadvantageous situation. Justice is a virtue, which transcends all barriers in the way of administration of justice. The credibility of the judicial institution is founded upon the faith of the common man in its proper functioning. The law has to bend before justice. No court can restore the broken heart of the justice and he should provide such protection, which is necessary for them like dutiful parents. The decision may not be repugnant to the normal concept and the basic unit of the society may not be allowed to be influenced by immorality. Thus the ultimate responsibility is by enunciating the foundation of a system on which administration of justice may get the public confidence in our judicial system. The mind of a person have steady wisdom and he is not to distressed calamity, he is not affected by the afflictions arising form thunder, lightening, storm, flood etc., and fear arising from the venomous and ferocious. When he is pleased in an affluent condition, he does not long for sensual pleasures. The body with the controlled mind possesses pious understanding or evenness of mind. He does not rejoice in pain that may be fall on him. He has life or body as he identified self, being routed in the self. He will not praise any body when later does any good to him nor sensor any one when one does him any harm. For when a man thinks of objects, attachment form desire is born, from desire anger arises, form anger comes delusion, form dilution loss of memory, form loss of memory the destruction of discrimination, form distraction of discrimination, he perishes as he is swept away by impulse of passion and emotion and he will act irrationally. One has to abandon all desires in the world be free form attachment an latent impressions doing everything out worldly and thus playing one’s part in the world. He has to cut the bond of attachment form all sides, by the sword of knowledge. He should to play with life and should be loyal to ideals and must spiritualist out his thoughts, emotions and actions. Soul require solitude, In order to get peace mind has to become calm. The physical existence must be free form all thoughts daily for sometime and furring the period of wisdom dawns. Thought mediation, one may study his true and realise he as spirit of freedom, spirit of unity, spirit of immortality. Live in truth by becoming truthful; love all, for love is unity, by reflecting upon thought. The man bondage may perpetuate slavery, Beware of lust, greed, anger passion hatred, jealousy and the unlimited wants of five senses. They are enemies. There is no spiritual knowledge without love. Spiritual realisation automatically makes us love every body. Truth and universal love raise us to a spiritual status and we can see the divine life. This is the highest vision which comes when he realise God in his heart and surrender himself completely to him and there by wiping out his ego sense. Purity truth and Constant remembrance of God comes by practice and in pure mind otherwise passions will create havoc. Desire move the sense, Tapas cuts the senses and annihilates desires. Tapas. is worship meditations. Thus the path of spiritualism is meant for controlling the bondage of. In this manner there will not be required by thought control nor the restrictions can be imposed upon such individual who has given his oneself to the swept of impotent without feeling any discontentment by the swept of impulsive notions. This is required for the rectification of prevailing maladies in the society. I consider that these message is one of the best exercises to adopt in mind before attending the session of mediation. These glorious traditions may provide smooth function in process of “mediation”. “what you are is god’s gift you, What you become is your gift to god”. “The route you take depends on the decision you make”. Keep in your mind-: (1) Is it the truth? (2)Is it fair to all concerned? (3) Will it build goodwill and better friendship? (4) Will it be beneficial to all concerned?. In this process, one has to adopt these introspection in your Characteristics of human behavior. 1. The most selfish one letter word. ‘i’, avoid it. 2. The most satisfying two letter word. ‘ we’ use it. 3. The most poisonous three letter word. ‘ego’ kill it. 4. The most used four letter word. ‘love’ value it. 5. The most pleasing five letter word. ‘smile’ keep it. 6. The fastest spreading six letter word. ‘ rumour’ stop it. 7. The working seven letter word. ‘success’ achieve it. 8. The most enviable eight letter word. ‘ jealousy’ distance it. 9. The most powerful nine letter word. ‘knowledge’ acquire it. Sincerely yours Yogesh Kumar Saxena, Advocate, High Court, Allahabad Senior Vice President, Advocate’s Association, Chamber No. 139,High Court Trained Mediator of the first batch of Mediation Team Registration No. 946 of 1974 ( U.P.Bar Council of Allahabad) Special Counsel in Ganga Pollution Matter. 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